Individuals who have testified against gang members in court may be eligible for asylum

San Francisco, CA– The en banc U.S. Court of Appeals for the Ninth Circuit yesterday vacated a Board of Immigration Appeals (BIA) decision denying asylum to Rocio Henriquez-Rivas. At the age of 12, Ms. Henriquez-Rivas saw gang members brutally assault her father in El Salvador. As she was running away, she heard the fatal gunshots that took her father’s life. After she testified against her father’s murderers in open court, gang members threatened to kill her. Ms. Henriquez-Rivas fled to the United States, where she applied for asylum protection.

The en banc Court examined the BIA’s controversial requirements that an individual seeking asylum or other protection based on membership in a particular social group must show that the group not only shares fundamental or immutable characteristics, but also has “social visibility” and “particularity.” The decision, authored by Judge Carlos Bea, holds that the BIA’s application and interpretation of the requirements in Ms. Henriquez-Rivas’ case were inconsistent with its own precedent.

Amici, led by the Center for Gender & Refugee Studies (CGRS) at the University of California Hastings College of the Law, urged the Court to reject the BIA’s social-visibility and particularity requirements altogether. The United Nations High Commissioner for Refugees (UNHCR) also argued in a brief that the Court should reject these requirements as inconsistent with the United States’ obligations to protect refugees under international law.

In the decision in Ms. Henriquez-Rivas’ case, the Ninth Circuit made clear that the BIA, under the only reasonable interpretation of its own standards, should recognize witnesses who testify against gangs in El Salvador as belonging to a particular social group. Although the Court left open the validity of the social-visibility and particularity requirements, the Court did cast a wider net of protection to particularly vulnerable asylum seekers, including women and children. According to CGRS Associate Director Lisa Frydman, “In decisions on file with CGRS, immigration judges and the BIA have rejected social groups advanced in women’s and children’s cases for lack of literal visibility or countrywide perception of the group. The en banc Court’s decision in Henriquez-Rivas thus offers hope to women, children, and other vulnerable asylum seekers who can prove that their persecutor perceived the group’s existence. CGRS will continue to challenge any efforts by the BIA to enforce its social-visibility and particularity requirements, which have posed insurmountable obstacles to protection.”

The Ninth Circuit recognizes that BIA decisions on the meaning of “social visibility” and “particularity” have caused confusion. The Court clarifies these terms, explaining that a social group does not have to be visible to the naked eye but rather understood by others as a group, can be diverse, and need not be recognized by everyone in society as long as the persecutor perceives the group and his victim as part of it. For example, a person could be understood as a member of a group of people who are gay even if he deliberately tries not to be recognized in a socially repressive society, and LGBT individuals might be dispersed geographically and unlike one another in other ways. Further, even in a society that claims not to have an LGBT population, a persecutor may target LGBT individuals.

This decision sends the case back to the BIA, giving it another opportunity to consider whether Ms. Henriquez-Rivas qualifies for asylum protection in the United States. In reversing the initial grant of asylum, the BIA did not dispute that, if she were returned to El Salvador, gang members would most likely kill Ms. Henriquez-Rivas and that the Salvadoran government could not protect her. CGRS and many other immigration organizations and law professors, like the Ninth Circuit, believe that the only reasonable interpretation of immigration law requires the BIA to uphold the asylum grant.

In Henriquez-Rivas and other cases pending before the Board, such as Valdiviezo-Galdamez, the BIA has the opportunity to reconsider the validity of its “social visibility” and “particularity” requirements. Kannon Shanmugam of Williams & Connolly, a Washington, DC law firm, argued for CGRS before the Court. In response to this decision, he stated: “We urge the BIA to apply the standard for social-group membership it set forth in its earlier Acosta decision and faithfully followed for twenty years. The BIA’s more recent decisions applying the social-visibility and particularity requirements have sown confusion and led to ad hoc and arbitrary decisionmaking. All we want is for applicants for asylum to be treated fairly and consistently.”

The Center for Gender & Refugee Studies at the University of California Hastings College of the Law protects the fundamental human rights of refugee women, children, LGBT individuals, and others who flee persecution in their home countries. CGRS provides legal expertise and training; engages in impact litigation, policy development, research, and in-country fact-finding; and uses international human rights tools to advance refugees’ human rights and address the root causes of their persecution.

Our Mission

The Center for Gender & Refugee Studies protects the fundamental human rights of refugee women, children, LGBT individuals, and others who flee persecution in their home countries through legal expertise and training, impact litigation, policy development, research, and in-country fact-finding.